TMI Blog2023 (7) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... he capital goods, on which Cenvat credit has been taken, are not put to use and the total amount related to those goods is written off fully or partially. The Chartered Accountant s certificate is not corroborated by any documentary evidence except the inventory obsolesce account and/or SAP system on the basis of the which, the chartered accountant has certified that the items for which the provision for obsolesce of inventory made in FY 2011-12 has been written back in the subsequent years 2012-13 or 2013-14 or the period subsequent to 2015-2017 as covered by another periodical show-cause notice. Time and again it has been held that the Chartered Accountant s certificate is not primary document. The SAP entry, as per the learned counsel, itself shows the intention to use such disputed items in manufacturing process subsequently but as per the Tribunal s order dated 19.12.2017 the appellant was required to show, to the adjudicating authority, from the records that the obsolete stock was used and written back into the records on being sold on discharge of payment of duty. The appellant are under obligation to produce documentary evidence before the adjudicating authority. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry/stores for the period 2009-10 to 2011-12, but had not reversed the Cenvat Credit availed on such inventory/stores during the said period in accordance with Rule 3(5B) ibid. Since the inputs, for which provision was made during the year 2009- 10 and 2010-11, were subsequently used by the appellant in the manufacture of the final product and the appellant had reversed the provision amount to that extent therefore only interest was proposed for those years. Whereas for the year 2011-12 duty liability of Rs. 10.10 lakhs along with interest was proposed alongwith interest as per the show cause notice dated 28.3.2014. For the years 2015-16 and 2016-17 another periodical show cause notice dated 18.6.2018 was issued proposing duty amounting to Rs.38,13,454/- since the appellant failed to pay an amount equivalent to the cenvat credit taken on the slow moving/obsolete inventory for which provision was made/written off during those years as required u/r. 3(5B) ibid alongwith applicable interest and penalty. 3. Learned counsel submits that appellant had not physically removed the inputs from the factory and had made provisions for the inventory in the balance sheet only for the income t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the said input or capital goods. Provided that if the said input or capital goods is subsequently used in the manufacture of final products or the provision of output services, the manufacturer or output service provider, as the case may be, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier subject to the other provisions of these Rules. Explanation.- If the manufacturer of goods or the provider of output service fails to pay the amount payable under sub-rules (5), (5A) and (5B), it shall be recovered, in the manner as provided in rule 14 for recovery of CENVAT credit wrongly taken. 5. The provision of Rule 3(5B) covers the situation where the value of the inputs or capital goods is written off fully or partially before being put to use. Therefore when the value of capital goods, on which Cenvat credit has been taken, is written off fully or partially before being put to use then only Cenvat credit is required to be reversed. The words partially written off have been incorporated w.e.f. 1.3.2011 and before that date, unless it is complete written off, rule 3(5B) ibid had no application. The entire case rests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel, for the years 2009-11 interest cannot be demanded or recovered from them. 7. For the identical period, in earlier round, an Appeal being Appeal No. E/86328/16-Mum was filed by the appellant before this Tribunal which, vide Order No. A/91633/2017 dated 19.12.2017, was remanded to the Adjudicating Authority for deciding the issue afresh as during the course of hearing the appellants admitted that they did not produce any evidence in support of their claim. The relevant portion of the said order is reproduced hereunder:- 3 The demands have been raised on the appellant on the ground that the appellant had during the period 2009-10 to 2011-12 made provisions for obsolete inventory/stores and did not reverse Cenvat credit availed on such inventory and stores, in accordance with the provisions of Rule 3(5B) of the Cenvat Credit Rules, 2004. It is the case of the appellant that they have been making such provision and were subsequently reutilizing these stores or selling on discharge of payment of duty. On a specific query form the Bench as to whether evidence was produced before the lower authorities, learned counsel submits that this evidence was not produced bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of payment of duty. The appellant are under obligation to produce documentary evidence before the adjudicating authority as per the order (supra) of this Tribunal, which they failed to produce. 9. Similarly another periodical show cause notice dated 18.6.2018 pertaining to years 2015-16 and 2016-17 was issued to the for denial of an amount of Rs.38,13,454/- and recovery of the same alongwith appropriate interest and penalty and the same culminated into the Order-in-Original dated 10.5.2019 confirming the demand of duty alongwith interest and penalty and the appeal against the said adjudication order was disposed of by the learned Commissioner vide impugned Order-in-Appeal dated 24.1.2020. Here also a specific finding has been recorded by the learned Commissioner that no documentary evidence has been produced by the appellant and only a certificate issued by the chartered accountant was produced. 10. Learned counsel for the appellant tried to show some chart being copy of documents showing item wise working of the provision as was existing during the periods in issue, but I am of the view that it is proper to leave it to the lower authority who is the appropriate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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